Final exam in California constitutional law:

Under the decision of the California Supreme Court in Strauss v. Horton, would the following change to the state constitution be an amendment or a revision?

Reserving the official designation of the term 'marriage' for the union of opposite-sex couples of the same race, but leaving undisturbed all of the other extremely significant substantive aspects of an interracial couples's state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.

Assume, for purposes of your answer, that the state supreme court has previously declared that the right of interracial couples to marry, including the designation "marriage," is fundamental. Assume also that the court has declared racial classifications invidious and thus subject to strict judicial scrutiny.

In your answer, be sure to discuss whether the proposed change would have a substantial or, indeed, even minimal effect on the governmental plan or framework of California.

Do not consider whether the change would violate the federal constitution. Also, do not discuss whether the change would be wise or sound as a matter of policy or whether you, as an individual, believe it should be part of the California Constitution.

Finally, you may not consult Eugene's answer, below.

einhverfr (mail) (www):
The question we must ask here is whether the California Constitution seeks to protect the rights of disadvantaged minorities or not. If the State Constitution is simply majoritarian and does not seek to protect the rights of minorities to a greater extent than is required under the US Constitution, then it seems to me that the amendment does not alter the fundamental plan of government in California-- all power to determine what rights are protected resides solely with the people.

If on the other hand, the CA Constitution intends to enshrine fundamental rights against the will of the majority then this would be a fundamental change in the plan of government because it would remove that constraint.

Now, since the CA Constitution can be amended by the voters on a simple majority basis, I conclude that the former is true and your hypothetical would be an amendment by CA standards.
5.26.2009 6:15pm
Ben P:
That would have certainly generated some post final conversation.
5.26.2009 6:15pm
einhverfr (mail) (www):
Also I would note that I don't think it is unreasonable to see the enforced segregation in your amendment as long as blacks and whites were not discriminated against in the areas of public services. For example... this does not pose the equal protection issues that segregated bathrooms or public schools would pose, nor would groups which are similarly advantaged be denied equal protection through segregation (for example, if we have one public school for those whose first names start with 'A' and another for those whose first-names start with 'Z', that doesn't seem like an issue which creates FUNDAMENTAL equal protection issues).
5.26.2009 6:22pm
einhverfr (mail) (www):
(sorry, should be "unreasonable to see the enforced degregation in your amendment as a within the bounds of equal protection....")
5.26.2009 6:24pm
The answer is: Yes, the above amendment banning inter-racial marriage would be a lawful (though immoral) amendment to the state constitution, not a far-reaching "revision". There is no substantive difference between this hypothetical and the real same-sex marriage ban amendment that the court just upheld.

It should be upheld by the california courts, on state-constitutional grounds, though of course in "real life" those same courts would be obligated to strike it down as violating the federal constitution.
5.26.2009 6:33pm
einhverfr (mail) (www):
Here is another hypo for your exam ;-):

Proposed amendment:
"The privilege to reside in this state shall be solely reserved to those who are fluent in the English language, and individuals not so fluent shall be subject to double penalties, fines, and imprisonment for any civil or criminal violation of law."

Is this an amendment or a revision?
5.26.2009 6:35pm
Putting Two and Two...:
Strikes me that the proposed hypothetical would more clearly be an amendment rather than a revision when compared to Prop 8. It would only affect one issue, while Prop 8 clearly did at least two things: "ban" same-sex marriage and render the word "inalienable" utterly meaningless. Any subsequent hypothetical won't face that second hurdle.
5.26.2009 6:41pm
Perseus (mail):
Easy: an amendment. As the original fountain of all legitimate authority, the people acting in their sovereign constitutional capacity--not the Court--are the final arbiters of the meaning of a previous amendment (for those who would resign their government into the hands of that eminent tribunal, compare Dred Scott).
5.26.2009 6:54pm

As the original fountain of all legitimate authority, the people acting in their sovereign constitutional capacity--not the Court--are the final arbiters of the meaning of a previous amendment

Except that The People established in their Constitution that revisions require a 2/3rds majority -- a legitimate restriction on the power of a bare majority to fundamentally structure their government.

Not that I at all disagree with the conclusion in this post, but they cannot be resolved simply by reference to the popular sovereignty of The People as if the California Constitution allowed a bare majority to make unlimited modifications.
5.26.2009 7:19pm
5.26.2009 7:20pm
paul lukasiak (mail):
looks like a revision to me, because the the "governmental plan or framework of California" includes consideration of fundamental human rights as a given. Negating fundamental/inalienable rights through a 50%+1 of voters referendum undermines the foundation of the constitutional government plan/framework itself, because it negates the purpose of the state government.
5.26.2009 7:22pm
The question we must ask here is whether the California Constitution seeks to protect the rights of disadvantaged minorities or not.

Oh you mean rights they simply assert they have, though no one has ever given them that impression? That's why I love Professor Volokh's caveat, " a policy matter", because it eschews the idea that we're talking about constitutional rights.

In this way, everyone who believes same-sex marriage should be legal is effectively in the minority. Yes, including straight people.
5.26.2009 7:24pm
Robert West (mail) (www):
This is utterly indistinguishable from Strauss and is every bit as much an amendment as Proposition 8 is.
5.26.2009 7:32pm
einhverfr (mail) (www):

How about an amendment such as:

"The freedom of speech in this Constitution shall not be construed to include dramatizations, symbolic speeches, or speeches on controversial subjects during official college events."

Amendment or revision?
5.26.2009 8:04pm
anon2345 (mail):
The case decided today specifically called an initiative that authorized housing discrimination based on race to be a valid amendment so I don't see how this question is any kind of challenge. Do I disagree? absolutely, but the Supreme Court of California has clearly spoken.
5.26.2009 8:13pm
Amendment, obviously. Status as an amendment v. revision has nothing to do with whether one likes the content or not, or with whether it conflicts with some federal law or not.
5.26.2009 8:23pm
CDU (mail) (www):
5.26.2009 9:06pm
TGGP (mail) (www):
Amendment, as are all the other proposed counterfactuals.
5.26.2009 9:56pm
Since I've graduated and left the U of MN, I feel free to disregard one of the exam rules when drafting my answer.

I would argue that, since the California constitution creates a state subject to the sovereignty of the United States, any amendment to the California constitution that is violative of the Federal constitution amounts to a revision. You have changed the structure of the state government from one that exists subject to the federal government, to one that is constitutionaly commanded to oppose fundamental federal principles. If that's not a revision, I don't know what is.
5.26.2009 10:20pm
Milhouse (www):
It would very clearly be an amendment, and I think any attempt to call it a revision would be raised in bad faith and should be dismissed with sanctions.
5.26.2009 11:22pm
einhverfr (mail) (www):
I think my hypo regarding English speakers would be a revision because it would fatally wound equal protection as a hallmark fo the rule of law in a way that prop 8 did not. It would be a close parallel to investing all executive power in the hands of the state supreme court.
5.27.2009 1:07am
Perseus (mail):
I don't see why dumping equal protection in toto would constitute a revision.
5.27.2009 2:10am
einhverfr (mail) (www):

In your reading would the following hypo amendments be revision:

"The Legislature shall have the power to pass bills of attainder."


"The governor shall have the power to direct verdicts in criminal trials and to make findings of fact in criminal cases."

I would argue that ditching a guarantee that like is treated as like would fatally wound the rule of law in the same way that the above hypos would. In short that is a fundamental change, rather than a mere directive not to use the term "marriage" in some cases (as the court has interpreted Prop 8).
5.27.2009 11:14am

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